Citation Nr: 1506708
Decision Date: 02/13/15 Archive Date: 02/18/15
DOCKET NO. 10-20 212 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas
THE ISSUES
1. Entitlement to nonservice-connected pension.
2. Whether new and material evidence has been presented to reopen a claim of entitlement to service connection for posttraumatic stress disorder (PTSD).
3. Whether new and material evidence has been presented to reopen a claim of entitlement to service connection for fracture and lumbosacral degenerative disc disease.
REPRESENTATION
Veteran represented by: The American Legion
ATTORNEY FOR THE BOARD
A. Cryan, Counsel
INTRODUCTION
The Veteran served on active duty from November 1968 to October 1970.
This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas.
The Veteran requested a hearing when he submitted his substantive appeal in May 2010. In a February 2012 letter, the Veteran was notified that he was scheduled for a Travel Board hearing at the RO in March 2012. In a statement dated in February 2012, the Veteran indicated that in the past his escorts did not come to the facility in which he was incarcerated at the time to take him to a hearing he had requested. The Veteran did not appear for the hearing and he has not requested that the hearing be rescheduled. The Veteran is therefore not prejudiced by the Board's adjudication of the issues on appeal.
The Board notes that the Veteran submitted additional medical and lay evidence following issuance of a July 2011 supplemental statement of the case. Additionally, the Board acknowledges that the RO failed to include the issue of entitlement to nonservice connected pension benefits on the July 2011 supplemental statement of the case. However, through his representative, the Veteran waived receipt of the additional evidence submitted and the Board is remanding the claim for nonservice connected pension benefits for additional development. Consequently, the Veteran is not prejudiced by the Board's adjudication of the issues on appeal.
The issue of entitlement nonservice connected pension benefits is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ).
FINDINGS OF FACT
1. The evidence submitted since March 2006 does not show or even suggest that the Veteran has been diagnosed with a acquired psychiatric disability, to include posttraumatic stress disorder (PTSD).
2. The evidence submitted since March 2006 does not show or even suggest that the Veteran's fracture and lumbosacral degenerative disc is the result of his military service.
CONCLUSIONS OF LAW
1. The March 2006 rating decision denying service connection for PTSD is final; new and material evidence has not been presented, and the claim is not reopened. 38 U.S.C.A. §§ 5108, 7104 (West 2014); 38 C.F.R. §§ 3.156, 20.1103 (2014).
2. The March 2006 rating decision denying service connection for fracture and lumbosacral degenerative disc is final; new and material evidence has not been presented, and the claim is not reopened. 38 U.S.C.A. §§ 5108, 7104 (West 2014); 38 C.F.R. §§ 3.156, 20.1103 (2014).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
I. New and Material Evidence
In this case, the Veteran is seeking to reopen two issues which have been previously denied. Specifically, in August 1992, the RO denied the Veteran's claim for service connection for PTSD. The Veteran did not appeal this decision. The Veteran submitted an application to reopen a claim for PTSD in August 2005 and the RO declined to reopen the claim for PTSD in a March 2006 rating decision. In December 1999, the RO denied the Veteran's claim for a lumbar spine disability. The Veteran appealed the denial and in May 2001, the Board denied the Veteran's claim for a lumbar spine disability. The Veteran submitted an application to reopen his claim for a lumbar spine disability in August 2005 and the RO declined to reopen the claim for a lumbar spine disability in a March 2006 rating decision. The March 2006 rating decision represents the last final denial of the claims. 38 C.F.R. § 20.1103.
However, a previously denied claim may be reopened by the submission of new and material evidence. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. Evidence is new if it has not been previously submitted to agency decision makers. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). Evidence is material if it, either by itself or considered in conjunction with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. Id. New and material evidence cannot be cumulative or redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. Id.
The Court of Appeals for Veterans Claims (Court) interprets the language of 38 C.F.R. § 3.156(a) as creating a low threshold, and views the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." See Shade v. Shinseki, 24 Vet. App. 110, 118 (2010).
Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, in the active military, naval or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Evidence that an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. Disabilities diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the injury or disease was contracted in service. 38 C.F.R. § 3.303(d).
In order to prevail on the issue of service connection there must be competent evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of an in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. See Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247 (1999); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).
A. PTSD
As noted, in March 2006, the RO declined to reopen the Veteran's claim for PTSD. The RO noted at that time that the Veteran's claim had been previously denied in an August 1992 rating decision because the evidence did not establish that the Veteran had been diagnosed with PTSD. The RO noted that the Veteran had not submitted any evidence reflecting a diagnosis of PTSD and determined that new and material evidence had not been submitted to reopen the claim.
At the time of the March 2006 decision, the evidence of record included service treatment records (STRs), service personnel records, post-service VA treatment reports, and private medical records from St. Luke's Episcopal Hospital and the Department of Corrections, and VA examination reports dated in February 1981, May 1982, and July 1992. The evidence did not reflect any complaints, findings, or treatment for PTSD.
In May 2008, the Veteran submitted a statement indicating that he wanted to submit a claim for service connection for PTSD. Lay statements from the Veteran and additional medical records from the Department of Corrections and physicians' statements dated in September 2012 and November 2013 have been obtained; the Veteran was also afforded VA examinations in February 2008 and June 2011. The records from the Department of Corrections are unrelated to treatment for PTSD and the February 2008 examination indicates that a psychiatric evaluation conducted as part of a larger general medical examination was normal. The June 2011 examination, conducted by a clinical psychologist, found that the Veteran did not meet the criteria for any Axis I mental disorder. The physicians' statements do not reference any psychiatric disorder having been diagnosed. The lay evidence does not include any reference to a specific stressor nor do the statements reference any specific psychiatric symptomatology or treatment for any psychiatric disorder. Consequently, as was the case at the time of the final prior denial in March 2006, the evidence still fails to establish a diagnosis of for an acquired psychiatric disability to include PTSD.
The Board notes in closing the case of Woehlaert v. Nicholson, 21 Vet. App. 456 (2007), wherein the appellant argued that the Board was obligated to reopen a claim because the RO had arranged for an examination, and that the examination in question was inadequate. In that decision, the Court held that the Board was not obligated to reopen a claim merely because the RO reopened the claim and undertook development such as obtaining a new examination or opinion. Furthermore, the Court also held that the adequacy of any such examination or opinion is moot if the Board determines that new and material evidence has not been presented, although the Board must certainly consider the results of such an examination or opinion as it would any evidence of record. In this case, the Board has reviewed the results of the June 2011 examination, and concluded that they do not constitute new and material evidence to reopen the claim. Furthermore, pursuant to this holding, the mere act by the RO of providing an examination did not require the Board to reopen the claim.
The Board acknowledges that the threshold for reopening is low, but it is a threshold nonetheless, and here, the evidence obtained since the Veteran's claim was previously denied simply does not approach that threshold. As such, the claim is not reopened, and this portion of the appeal is denied.
B. Lumbar Spine Disability
As noted, in March 2006, the RO declined to reopen the Veteran's claim for fracture and degenerative disc disease, lumbosacral spine. The RO noted at that time that the Veteran's claim had been previously denied in a December 1999 rating decision because the evidence did not establish that the Veteran's degenerative disc disease of the lumbar spine was related to service including exposure to herbicides. The RO noted that the Board upheld the denial in a May 2001 decision.
At the time of the March 2006 decision, the evidence of record included STRs, service personnel records, post-service VA treatment reports, private medical records from St. Luke's Episcopal Hospital and the Department of Corrections, and VA examination reports dated in February 1981, May 1982, and July 1992. The evidence from St. Luke's Episcopal Hospital reflects that the Veteran was diagnosed with recurrent herniated nucleus pulposus at L4-5 on the right and underwent a lumbar laminectomy, foraminotomy, and discectomy on the right. The record indicates that the Veteran had been under the care of the physician who performed the surgery since 1975 and had previous surgeries on his low back in 1976, 1979, and 1982. He was noted to have been doing well until he developed recurrent back pain following an injury in January 1983.
In May 2008, the Veteran submitted a statement indicating that he had chronic illnesses as a result of exposure to Agent Orange. This statement was accepted as an application to reopen a claim of entitlement to service connection for a lumbar spine disability. Lay statements from the Veteran and additional medical records from the Department of Corrections and physicians' statements dated in September 2012 and November 2013 have been obtained; the Veteran was afforded VA examinations in February 2008 and June 2011. The records from the Department of Corrections are unrelated to treatment for the low back. The February 2008 examination indicates that the Veteran had residuals of lumbosacral spinal recurrent surgeries. The June 2011 examination did not include any pertinent physical findings as the examination was conducted to assess whether a psychiatric disability was present. The physicians' statements indicate that the Veteran had chronic pain of the joints and spine degenerative changes. The lay evidence does not include any reference to a specific injury in service nor do the statements reference current treatment for the lower back. Moreover, none of the medical evidence links any current low back disability to the Veteran's military service. Consequently, as was the case at the time of the final prior denial in March 2006, the evidence fails to establish a link between the claimed lumbar spine disability and the Veteran's active military service.
The Board acknowledges that the threshold for reopening is low, but it is a threshold nonetheless, and here, the evidence obtained since the Veteran's claim was previously denied simply does not approach that threshold. As such, the claim is not reopened, and this portion of the appeal is denied.
II. Duties to Notify and Assist
Under applicable criteria, VA has certain notice and assistance obligations to claimants. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). In the context of the issue of whether new and material evidence has been submitted to reopen previously denied claims, there are additional notice requirements. Kent v. Nicholson, 20 Vet. App. 1 (2006). In this case, required notice was provided. Additionally, neither the Veteran, nor his representative, has either alleged, or demonstrated, any prejudice with regard to the content or timing of VA's notices or other development. See Shinseki v. Sanders, 129 U.S. 1696 (2009). Thus, adjudication of his claims at this time is warranted.
As to VA's duty to assist, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). Service treatment records, VA treatment records, and private treatment records were associated with the claims file. Additionally, the Veteran was offered the opportunity to testify at a hearing before the Board. The Veteran failed to report for the hearing without providing good cause for his absence.
The Veteran was provided with several VA examinations (the reports of which have been associated with the claims file) during the pendency of the appeal. While a medical opinion of record was not provided with regard to the Veteran's previously denied claim for a lumbar spine disability, VA is not required to obtain an examination or obtain a medical opinion because VA has determined that new and material evidence has not been received and the claim has not been reopened. See Paralyzed Veterans of America v. Secretary of Veterans Affairs, 345 F.3d 1334, 1341-44 (Fed. Cir. 2003). As such, an opinion is not necessary.
As described, VA has satisfied its duties to notify and assist, and additional development efforts would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Because VA's duties to notify and assist have been met, there is no prejudice to the Veteran in adjudicating this appeal.
ORDER
The request to reopen the previously denied claim of entitlement to service connection for PTSD is denied.
The request to reopen the previously denied claim of entitlement to service connection for fracture and lumbosacral degenerative disc disease is denied.
REMAND
A review of the claims file reveals that a remand is necessary before a decision on the merits of the claim of entitlement to nonservice connected pension benefits is warranted.
VA pension benefits shall be paid to wartime veterans who are permanently and totally disabled from nonservice-connected disabilities which are not the result of willful misconduct. 38 U.S.C.A. § 1521(a). Such benefits have a number of requirements, including that a Veteran (1) served in the active military, naval, or air service for 90 days or more during a period of war; (2) is permanently and totally disabled from nonservice-connected disability not due to his/her own willful misconduct; and (3) meets the net worth requirements under 38 C.F.R. § 3.274, and does not have an annual income in excess of the applicable maximum annual pension rate specified in 38 C.F.R. §§ 3.3, 3.23. 38 U.S.C.A. §§ 1502, 1521; 38 C.F.R. § 3.3(a)(3).
As an initial matter, the Board notes that the Veteran served for 90 days during a period of war and as such he meets the threshold requirement for nonservice connected pension. It is unclear whether the Veteran is permanently and totally disabled from nonservice-connected disability not due to his/her own willful misconduct, whether he meets the net worth requirements under 38 C.F.R. § 3.274, and whether he has an annual income in excess of the applicable maximum annual pension rate specified in 38 C.F.R. §§ 3.3, 3.23.
The Veteran submitted a statement dated in October 2007 asserting that he was entitled to nonservice connected pension benefits due to severe bone disease and PTSD. He submitted a VA Form 21-527, Income-Net Worth and Employment Statement that was received in May 2008. At that time, he was incarcerated and he indicated that he had no income. Since that date, the Veteran has indicated that he was paroled. As such, an updated VA Form 21-527 should be obtained.
Additionally, the Veteran was afforded a VA general medical examination in February 2008 in order to determine whether he had any significant disabilities that interfered with his employment. The examiner was requested to provide a summary of all diagnosed disabilities and for each condition diagnosed, describe the effect on the Veteran's usual occupation and daily activities. The examiner diagnosed residuals of lumbosacral spinal recurrent surgeries and bilateral patellofemoral pain syndrome of the knees. The examiner did not include any statement with regard to the Veteran's diagnosed disabilities' impact on his employment. Consequently, another VA examination is necessary to obtain this information.
Accordingly, the case is REMANDED for the following action:
1. Request that the Veteran submit an updated VA Form 21-527, Income-Net Worth and Employment Statement.
2. Schedule the Veteran for a VA general medical examination to identify and evaluate any significant disabilities that interfere with his employment. The examiner should include a diagnosis for all disabilities and describe the effect of each diagnosed disability on the Veteran's usual occupation and daily activities.
3. Then, readjudicate the claim for non-service connected pension. If action remains adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response. Then, return the case to the Board.
The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).
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MATTHEW W. BLACKWELDER
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs